Guilty until proven innocent

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Arrest records live on despite dismissals, acquittals

Over the past decade, and especially since September 11, technological advancements have greatly increased that make it easier and cheaper to have criminal background checks done. The problem is not that more and more businesses today are doing background checks, but that the data upon which the checks are based are often not complete.

Of 46,806 misdemeanor crimes filed in Hennepin County Fourth Judicial District Court in 2004 — which included fifth degree assault, domestic assault, non-traffic and moving violation misdemeanors — 28,818 did not result in a conviction. Over 21,000 were dismissed, and almost 8,000 were continued for later dismissal.

That same year in Ramsey County, 38,245 misdemeanor cases were filed, 16,838 of which did not result in conviction.

However, even if a case is dismissed, “You still have a criminal record,” says Guy Gambill, advocacy coordinator at the Council of Crime and Justice, a local nonprofit organization that examines Minnesota’s criminal justice system.

Criminal records can unfairly hurt an individual, even if the individual is later found legally innocent. Such information is used to make not only hiring decisions, but housing decisions as well.

“You go to rent an apartment, and somebody buys your background check,” explains Gambill. “It pops up that you had an arrest for loitering, and then you are denied housing. Most landlords don’t see that it is a non-conviction — they just see that you have been arrested.”

Such low-level offenses as loitering, driving without a license, and disorderly conduct have an adverse effect on local Black men, Gambill says. “We looked at seven [low-level] offenses [and found that] African American men are 16 times more likely to be arrested [for loitering or lurking with intent to commit a crime].”

Also, Blacks are seven times more likely than Whites to be convicted. “This becomes a bigger problem if you are Black in Minneapolis than if you are White.”

That racial factor continues to hound those who have “paid their debt” for offenses. A 2004 Northwestern University study on applicants for low-level jobs found that a Black man with a prison record is less than half as likely as a White male with a prison record to get hired or be called back for an interview by an employer. Even if an ex-offender has stayed out of trouble for a number of years, a previous criminal record often continues to deny them employment.

Sam Grant, Council on Crime and Justice director of projects, added that even the federal criminal data bases, including the FBI and the state’s Bureau of Criminal Apprehension (BCA) often aren’t accurate — “and those are the two best databases,” he points out. “They do not keep them up to date.”

More and more businesses, along with landlords, are using outside firms that specialize in performing background checks. Gambill calls these firms “data harvesters.”

“There are probably 60 to 70 data harvesters operating in Minneapolis,” he said. “They all do things differently in getting their information.”

Getting someone’s criminal record from the BCA database is as easy as typing in a person’s name and date of birth, Grant points out. “Because of the information age, a commercial data harvester can go back 40 years, and they will find something that may have been dismissed but won’t find the outcome [of the case].”

A council study also found that over 80 percent of large companies use criminal background checks in their hiring processes. “Too many ex-offenders are being told ‘no’ even before they get considered,” says Grant.

Gambill says the council supports several recommendations from CriMNet, a program that provides accurate and comprehensive data to criminal justice agencies throughout Minnesota, allowing agencies to use data where it exists in the criminal justice system rather than creating one place where all that data resides. The organization’s Criminal and Juvenile Justice Information Task Force studied background checks for non-criminal justice purposes and criminal records expungements, releasing its report in November 2006.

The task force focused on five key areas: 1) What data should be included for background checks, such as any criminal history that has taken place less than 15 years since sentencing; 2) When should state and national fingerprint-based searches be performed; 3) Should informed consent and individual privacy protections be in place; 4) When should background checks be mandatory; and 5) Who should pay for background checks.

Their recommendations included:

• Establishing categories for background checks and “risk levels of scrutiny” to apply to a background check depending on the risk of harm associated with positions, such as contact with children or vulnerable adults.

• Requiring fingerprint-based checks from the state criminal history repository for background checks.

• Providing information to individuals that a background check is required by law or provide a consent form that includes the type of criminal history sought, the scope and duration of the check, whether re-disclosure is allowed, and if so, under what circumstances.

• Providing notice of disqualifying offenses to the job applicant prior to completing an employment, licensure or other service-related application.

• Providing the job applicant with a copy of the background check results.

• Providing notice of the data subject’s rights to access and correct data.

• Providing notice to the individual when the background check is completed and who initiated it.

• Making background checks mandatory for individuals seeking employment in schools; for employees or volunteers who work with children; for firefighters, hazardous or solid waste facility positions; and for accelerated mortgage payment providers.

• State agencies providing background checks at no charge for nonprofit or political volunteers when background checks are mandatory.

The CriMNet task force also issued several recommendations regarding expungement of criminal records, including:

• Automatic or administrative expungements for arrests and dismissed charges one year after the arrest, and one year after the charges are dismissed; continuances for dismissal and stays of adjudication.

• Making expunged records accessible to the courts, law enforcement, prosecutors, probation officers and corrections officers without a court order.

• Allowing job applicants who are ex-offenders to easily respond to questions about their criminal history and be able to discuss an expungement.

Gambill notes that an expungement doesn’t always mean that a criminal record is cleaned up “because the [police] and the BCA may or may not seal your file.”

The council also supports Minnesota House File #1380 and Senate File #279, which call for non-connection data to be automatically sealed and limiting access to only law enforcement and court officials. Both measures are currently stuck in committee, Gambill says, adding that his organization will be lobbying state lawmakers to consider the two bills in the upcoming legislative session.

Charles Hallman welcomes reader responses to challman@spokesman-recorder.com, or read his blog, www.wwwchallman.blogspot.com.